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Charter - s.10(b) Right to Counsel (3). R. v. Babbington
In R. v. Babbington (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a conviction for first-degree murder.
Here the court considered the law of the admissibility of statements and voluntariness:[10] We are not persuaded by this submission. The trial judge was well aware of the overarching principles relating to the voluntariness of statements made by accused persons. In his ruling on voluntariness, he said, at para. 44:The leading case on the voluntariness of statements is R. v. Oickle (2000 SCC 38 (CanLII), [2000] 2 S.C.R. 3 (S.C.C.)). In that decision, the Supreme Court outlined the four requirements for a statement to be voluntary:a) There cannot be any threats or inducements offered to the person making the statement.
b) There cannot be oppression. A statement cannot be voluntary if the will of the person making it has been overborne.
c) The accused person must have an operating mind.
d) There cannot be any police trickery. [11] After the appellant was arrested, he was provided with, and exercised, his right to counsel. However, as the lengthy police interview continued, on about 60 occasions he asked to speak to his lawyer again. The police did not accede to his request.
[12] We see no error in the trial judge’s conclusion that the appellant exercised free will throughout the interview.
[13] There is no constitutional right for an accused to speak to counsel a second time, absent certain recognized exceptions. For instance, a second opportunity to speak to counsel may arise if there are changed circumstances resulting from new procedures involving the detainee, a change in the jeopardy facing the detainee, or reason to believe that the first information provided was deficient: R. v. Sinclair, 2010 SCC 35, at para. 2. None of these was present in the police interview of the appellant.
[14] Accordingly, the trial judge was entitled to conclude as he did in his ruling on voluntariness, at para. 97:The accused has a right to remain silent. However, Singh, supra also recognized (at paragraph 28) that the importance of police interrogation was also a consideration, and that there was no right “not to be spoken to” by the police. I view [the interviewing officer’s] conduct as well within the proper boundaries of police interrogation pursuant to Singh. [15] We see no error in the trial judge’s conclusion that the appellant knew the jeopardy he faced when he spoke to his counsel the first time and that, quite simply, his will was not overborne.
[16] The appellant’s submission relating to inadequate access to bathroom breaks during the interview at the police station is very weak. As the appellant said, he “leaked” into his pants shortly after his arrest and he urinated three times into a cup during the interview. However, the appellant was drinking a large amount of water and he had frequent bathroom visits during the interview. When the appellant used a cup in the interview room, he gave the police virtually no notice that he needed to urinate. Indeed, the appellant had been taken to the washroom five times to urinate before he first used a cup. That cup was used not even two hours after the fifth washroom break and after the officer told the appellant to “sit tight” and then left the room for a short bit. Prior to urinating, the appellant sang for a bit, tapped on the table, yelled out “Ah. Sir. Fuck.” And then loudly yelled, “I’m gonna pee in a cup” and then seconds later, urinated in a cup.
[17] In his voluntariness ruling, the trial judge dealt with this issue at some length. He concluded at para. 114:When I step back and look at all of the issues relating to washroom breaks, I conclude that the officers provided appropriate washroom breaks, and that there was no conduct that was oppressive or would otherwise have affected the voluntariness of the accused’s statement. [18] We agree with this conclusion.
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